In another recent development in the case, the Liberty Institute, a Texas non-profit, public interest law firm "dedicated to the preservation of America's religious liberty," has submitted an amicus brief in the case which presents a unique argument. The brief (a .pdf download from this page) suggests that because the two sides do not agree on whether or not the Episcopal Church is "hierarchical" above the level of the individual dioceses, the civil courts are incapable of resolving that question without engaging in inquiry into religious polity, governance and doctrine to a degree which would infringe upon the freedom of religion under the First Amendment. It argues that the Supreme Court should order the cases dismissed, for want of a justiciable question.

So from the point of view of Bishop Iker's diocese, that would not be a bad result. However, in making their argument to dismiss, I believe the Liberty Institute has mistaken the nature of the issue that is really at stake in the case.

For the dispute is not about whether the Episcopal Church (USA) is truly hierarchical with respect to its member dioceses. That is indeed what it claims in all of its papers in all of the dozens and dozens of lawsuits it has filed across the country, but it is doing so only as a legal strategy. It has adopted that line of argument in order to avoid the application of "neutral principles of law", as endorsed by the United States Supreme Court in Jones v. Wolf, to its allegation that all parish and diocesan property throughout the whole Church is held in a legally enforceable trust for the denomination.

A Justice of the Supreme Court is not supposed to render legal advice to parties as to how they might order their affairs in light of the Court's decision in a given case. But Justice Blackmun all too frequently saw himself as the litigants' friendly Uncle Harry, who while handing down a ruling against one and in favor of another, could still seem avuncular and helpful, by suggesting (in Jones) "It's not all that bad -- see here how we can deal with this", or by waxing on and on at length (in Flood v. Kuhn) about the glories of America's baseball history. One wishes a judge just to be a judge when he is speaking officially, and Justice Blackmun routinely ignored that rule -- to the lasting detriment of individual churches and vestries throughout America.

The Episcopal Church's Walter Dennis immediately pounced upon Justice Blackmun's suggestion, and had the Church amend not its Constitution -- for that would have taken four years, with uncertain prospects for success -- but its Canons, which could be done at the last minute, unnoticed and probably without following the rules of General Convention, without anyone paying any attention. And starting twenty years later, we have been litigating the effects of his proposal, the infamous Dennis Canon, ever since.

Flushed with some initial court decisions upholding its Dennis Canon (based on Justice Blackmun's unsolicited advice), ECUSA expanded its trust claims to the property of entire dioceses shortly after Bishop Schofield's Diocese of San Joaquin decided it could no longer remain part of the Episcopal Church (USA) in 2007. It did so, not by claiming that the Canon applied to the assets of its member dioceses (written by a bishop, it clearly did not), but by asserting a long-standing, unwritten policy or implicit agreement among its members that they would not withdraw once they had joined, or that if they did, they would leave all their accumulated property and assets behind for any minority that decided to stay.

Such a claim, however, is founded only upon the supposedly "hierarchical" character of the Church at all levels. And it needs to be asserted only because the national Church never wanted to bother with the manifold complex details of complying with the statutory trust requirements of each and every State. The "easy out" which Justice Blackmun offered it came like manna from heaven, and the Church's leadership has never looked back, despite the disastrous consequences for is character, finances, and reputation.

Following "neutral principles of law" in church property disputes simply means treating church litigants no differently from any other civil litigants. It means requiring churches, regardless of their extent or polity, to comply with the civil laws of the State in which they are headquartered, or located, to the same degree as any other person in that State. If they want to place parish property into a trust for their benefit, then have the parish vestry approve and sign a declaration of trust, just like everyone else, and like every other legally enforceable trust that was created in that State.

But don't come into court with all kinds of mumbo-jumbo about "religious polity", unwritten agreements, and the like. Look simply at how the title is held in the various deeds, and what the parish and diocesan governing documents say. And whenever such principles are correctly applied, ECUSA loses, as it should, because it never took the trouble to comply with the requirements to establish a formal trust in someone else's property.

So the argument made by the Liberty Institute is flawed, because it takes ECUSA's claim of "hierarchy" at face value, and ultimately confuses the nature of such an entity with its ability to comply with secular, civil law. Even though ECUSA would lose by application of the Institute's principles in this case, those principles would leave many individual parishes, for instance, without any means of establishing title to their assets if they were claimed by someone else to be "in trust". All civil courts would have to decline to hear any such lawsuits whatsoever.

Courts can apply neutral principles of law to church property cases without entangling themselves in religious doctrines or polity. It is only when this notion of "a hierarchical church" is allowed to get a foot in the door that the application of neutral principles becomes skewed, and the analysis becomes confused. It is far better for the civil courts simply to stick with what they know, and do every day of the year -- and to leave the metaphysical contentions and religious consequences to the clerics and theologians.

2 comments:

"It is far better for the civil courts simply to stick with what they know, and do every day of the year -- and to leave the metaphysical contentions and religious consequences to the clerics and theologians."

Well said.

I hope SCOTX to give EC...'you didn't build that'...SA a big blow to their un-Christian and ungodly trash.

A Guide to This Site

This page will provide you with a convenient listing of posts by category. In order to use the features of this site, you need to check all the past posts in a given category, since each new post assumes a certain familiarity with what has gone before.

Subscribe

A Gentle Warning to Readers

This Weblog has a different purpose from that of---oh, say Instapundit. The topics here do not lend themselves to short, pithy treatment. Also, there are many legal colleagues in the audience; I include material that may appeal more to one who has been trained in that profession. So, be forewarned; this may not be easy reading. No apologies---some days you might just have to work harder! Should you have any complaints, first observe these preliminaries, and then post your specifics on the RantBoard.

Comment Policy

Good dialogue is fostered when people sign their own posts. I reserve the right to moderate all comments, again in the interests of a good dialogue, and I thank those who are minded to contribute to that goal. If you are having trouble posting a comment because of the registration requirements, please email me (see my Profile) and I will try to help.

A Gallimaufry of Weblogs

Listed below are the Weblogs I commend to your attention. A listing is not an endorsement of content. For an explanation of the groupings (by analogy to Tennyson's "Charge of the Light Brigade"), please see this post, and this; the reference to "cannon" is not pejorative (although it may, depending on its character, be regarded as onomatopoetic). Authors who object to their listing here, either on specific grounds or no grounds at all, may contact me for correction or removal. (Removal is automatic after a month or so of inactivity.) I will also consider requests and recommendations to be added.Note: only the best of the conservative political blogs are listed here (under "Cannon Fodder", below). For a comprehensive roll of political blogs on the left, please visit the Liberal Curmudgeon (site currently afflicted by malware; link to be supplied when the site is certified as clean).